Monday, 12 February 2007

by CASH MICHAELSThe Wilmington Journal Originally posted 2/11/2007 The Darryl Hunt case has helped define Winston-Salem race relations for nearly 20 years, in terms few people can ignore. He�s that black man the police framed because they couldn�t let the rape of a white woman go unpunished.

--The Winston-Salem Journal

For many conservatives, and those who oppose a moratorium on capital punishment in North Carolina, the Darryl Hunt case is an anomaly in the argument that it is very likely that factually-innocent people have been executed in North Carolina.

Hunt served almost 20 years of a life sentence in prison after being wrongfully convicted in 1984 by an all-white jury of the rape and murder of a white female reporter in Winston-Salem, despite the fact that no physical evidence ever connected him to the crime, and police admittedly conducted a biased investigation.

Hunt was freed in 2003 only after his attorneys and the community fought for the DNA tests that ultimately proved his innocence, and another man admitted to the crime. And even then, the prosecutor and the police initially refused to acknowledge their mistakes.

Because it was a capital case, and involved a young black male convicted of the rape and murder of a young white woman, supporters say it was by the grace of God that Hunt didn�t get the death penalty.

�If Darryl Hunt had been sentenced to death in his first trial, he would be dead now, and I guarantee you no one would be saying he�s innocent because we wouldn�t have done the work to prove it,� Duke University Law Professor James Coleman, a renowned expert on death penalty issues, says.

The Darryl Hunt episode, along with the case of Alan Gell, a white man who was sentenced to death in 1998 after a wrongful murder conviction that was later thrown out due to prosecutorial misconduct, has become Exhibit A in the cause to have North Carolina impose a moratorium on the death penalty until the inadequacies in its capital punishment system are worked out.

John Hood, president of the John Locke Foundation, a Raleigh-based conservative think-tank, doesn�t understand why.

How does this tragic case prove theneed for a moratorium on the death penalty?�

Hood wrote in his online Carolina Journal column in February 2004.

Well, presumably the argument is that this miscarriage illustrates the fundamental flaws of our criminal-justice system. But Hunt was never on death row, though in the original trial he was charged with a capital murder and was found guilty but was then sentenced to life in prison. Thus I�m not sure why the case is being treated as directly relevant to the use of capital punishment.�

The fact that Hunt wasn`t sent to death row isn�t the issue, Duke`s Professor Coleman counters. That an innocent man was convicted of a capital crime at all, and did not receive due process from the very criminal justice system that constitutionally was supposed to ensure it, very much is.

The NC Death Penalty Study of 2001 by Dr. Isaac Unah of UNC-Chapel Hill and Dean John Boger of the UNC School of Law, which conclusively proved that black defendants in capital cases were victims of a different standard and process of justice, noted that what Hunt experienced was par for the course.

�Research conducted in North Carolina during the era of Jim Crow segregation in the 1940s indicated that racial discrimination was playing a regular, illegitimate role in two different respects: black defendants were more likely to receive death sentences for similar crimes than were white defendants, and those defendants (of whatever race) who murdered white victims were also more likely to receive death sentences,� the report stated.

A quick snapshot of North Carolina�s long history of state-sponsored executions tells the story.

From 1910, when the state officially took over the responsibility of executions from local governments, until just 1920, out of the 50 executions performed, 42 were on black males, compared to just 8 for white males.

Of those 42, eleven Blacks were put to death for rape (compared to just one white), 29 blacks were executed for murder (compared to just 7 whites); and two black males met the gallows for burglary.

Apparently no whites during that ten-year period stole anything worth executing them for.

One thing that is abundantly clear about that period regarding black defendants who were tried for those capital offenses � all of them were convicted by all-white juries, and none of them could afford even averaged experienced white defense attorneys.

How many were truly innocent of murder, rape or burglary, and had not a prayer of proving it in a biased court of law?

�We have made some significant improvements in how we conduct criminal investigations and criminal trials,� Prof. Coleman says. �In the past we were not careful, we appointed lawyers, some of whom were racists and had no interest in whether their client was guilty or not. In those circumstances, you could never convince me that we didn�t convict and execute innocent people. It is not possible that we didn�t do that.�

Since Hunt clearly wasn�t the first innocent person, black or white, this has happened to in the 97 years since North Carolina began state-sponsored executions, there�s little doubt, Coleman says, that a factually-innocent death row inmate has been wrongfully executed here.

�There have been over 100 people [in this country] sentenced to death who were innocent. We know that. We can look at those cases and say these are the factors that led to the wrongful convictions. Using that, we can go back, and look at all of the cases in which people have been executed, and ask the question, �Do any of those cases involve some of the same factors that we know have led to wrongful convictions in the past?�

�I guarantee you that you will find cases in North Carolina where people have been executed, where some of the factors that led to wrongful conviction exist in those cases,� Prof. Coleman said. �But who�s going to do it, who�s going to do the work?

�The [only] reason why [Darryl Hunt] is alive is because he wasn�t sentenced to death,� Coleman reiterates. �He stayed in prison nine years after the DNA showed he didn�t commit the rape. It wasn�t the system that saved him. It was lawyers who kept banging their heads against the wall.�

Like a growing wave, more and more prison doors to death row are opening across the nation, releasing innocent people who were originally convicted of capital crimes, and would have died if others hadn�t interceded.

According to the American Civil Liberties Union, �In the past 30 years, [over] 123 inmates [nationwide] were found to be innocent and released from death row.�

�The vast majority of those exonerated were found innocent because someone came forward to confess committing the crime; key witness testimony was found to be illegitimate; or new evidence was found to support innocence,� the ACLU later added.

Of the over 113 death row inmates found innocent and released since February 2004, less than a third were the direct result of DNA testing.

New York freed death row inmate Roy Brown just this week after 15 years in prison when DNA cleared him of a murder he didn�t commit.

Brown is the eighth innocent person set free because of DNA in New York in the past 13 months, more than any other state.

In Texas, former death row inmate Kerry Max Cook has just published a book titled �Chasing Justice,� about how he was freed from prison after 22 years by DNA evidence.

According to a four-part investigation by McClatchy newspapers titled, �No Defense: Shortcut to Death Row,� there is evidence of �extensive problems with adequate [legal] counsel� for defendants in four death penalty states � Alabama, Georgia, Virginia and Mississippi.

Inadequate and inexperienced defense counsel in capital cases, coupled with biased prosecutors interested only in racking up convictions instead of finding the truth, historically are cited as key reasons why innocent defendants end up convicted and sentenced to death, legal experts say.

In 2001, the progressive Common Sense Foundation of North Carolina examined the trial records of 147 death row inmates, and called for new trials in 37 cases where they were found ��to have been represented by less-than-fully-qualified counsel��

�In many other cases, it was good fortune rather than the criminal justice system that established innocence,� the ACLU reported. �In several cases, college or law school students investigated cases and unearthed essential evidence. If it had not been for the work of these students, an innocent person may have been put to death.�

Last August, Gov. Mike Easley signed into law the establishment of the NC Actual Innocence Commission, a panel that reviews the claims of convicted inmates to determine whether they are indeed guilty.

�Recent developments in DNA testing have confirmed the long standing fear that, despite the superior nature of our justice system, there still exists the possibility that individuals can be convicted of crimes they did not commit,� the commission�s mission statement says.

�Exoneration cases in North Carolina include Ronald Cotton, Leslie Jean, and Leo Waters - all of whom were exonerated by DNA; and Terrence Garner, Charles Munsey, and Tim Hennis, whose exonerations were not based on DNA.�

�Although it is believed that the risk of conviction of an innocent person is small in North Carolina, the cause of even one innocent conviction should be identified and corrected if possible,� the mission statement continued. �

Wrongful conviction of the innocent not only destroys the lives of those convicted and their families; it allows the actual perpetrator of the crime to go unpunished and to be free to potentially commit additional crimes.�

�Additionally, injustices negatively impact public trust and confidence in the justice system.�

Conservatives argue that despite all the claims of a �seriously flawed� criminal justice system when it comes to capital punishment, there is no evidence of an innocent person ever being executed in this state, or nation.

��[C]ontrary to urban legend, there is no credible example of any innocent person executed in this country under the modern death-penalty system,� declared University of Utah Law Professor Paul G. Cassell in a June 2000 Wall Street Journal op-ed piece.

Dudley Sharp III, director of Death Penalty Resources for the Houston, Texas-based pro-death penalty group, Justice for All, wrote in a 2001 letter to the editor to the Chicago Sun-Times that even though 13 death row inmates were exonerated and freed in Illinois that year, �There is no allegation of an innocent executed.�

�How would they ever know that?� asked Prof. Coleman. �That�s just ridiculous because in order to prove that, you�d have to have someone who is working on trying to identify a wrongful conviction after the person is executed. Once a person has been convicted and executed, it is very difficult to convince people that he may have been innocent.�

Prof. Coleman continued, �If the state wanted to test to see if this were true, then let the state put up the money, employ people to go back and look at every execution in North Carolina, and identify those that may have been wrongfully convicted. I guarantee you, you can identify some.�

Newspapers across the country, not states, have been doing the work Prof. Coleman suggests, and what they�ve uncovered is startling.

In June of last year, the Chicago Tribune published a three-part series detailing how a robbery-murder suspect, Carlos De Luna, was executed in 1989 in Texas for a crime observers are now convinced he didn�t commit.

�The Tribune series found that De Luna�s case was compromised by unreliable eyewitnesses, sloppy police work and a failure by prosecutors to pursue evidence pointing to the other man, who died in prison while serving time for another crime,� the paper wrote.

�Nicole Casarez, a journalism professor at the University of St. Thomas in Houston who has researched suspected cases of wrongful executions, urged Texas legislators to establish a special court of inquiry to review cases like De Luna�s as they come to light,� the Tribune added.

Other newspapers like the Houston Chronicle, St. Louis-Dispatch, and the Atlanta-Journal Constitution have also reported extensively about executions where strong exculpatory evidence that was available for trial beforehand, but never used, seemed to suggest innocence.

The Journal-Constitution reported in August 2005 how the Georgia Board of Pardons and Paroles issued a formal, yet belated pardon to Lena Baker, a Black woman executed in 1945 for the murder of a white man.

�Baker was tried, convicted, and sentenced to die in one day by an all-white, all-male jury,� the paper wrote. �Baker claimed she shot E.B. Knight in self-defense after he locked her in his gristmill and threatened her with a metal pipe. The pardon board notes that Baker �could have been charged with voluntary manslaughter, rather than murder, for the death.�

The board called Baker�s execution �a grievous error, as this case called out for mercy.�

The death penalty issue is back front and center in North Carolina following several major developments many see as helpful to the moratorium movement.

On Tuesday Gov. Mike Easley and the Council of State approved new guidelines proposed by the NC Dept. of Correction for doctors to monitor executions by lethal injection. The ten-member panel was unexpectedly thrust into controversy after a Wake Superior Court judge ruled that it had to sign off on the proposal in the aftermath of the NC Medical Board�s recent ruling prohibiting doctors in the state from participating in executions.

Doctors have traditionally been present to assure that the lethal injection procedure is carried out properly, and to officially certify time of death.

Problems with the procedure in California and Florida have forced those states to declare temporary moratoriums on executions until it can be determined that the procedure is being implemented in a manner not violating constitutional requirements against �cruel and unusual punishment.�

It is not clear where the issue goes to next, given that the General Assembly is expected to address the matter at some point.

Over 40 state Senate and House members, including members of the NC Legislative Black Caucus, have asked Gov. Easley in a letter to halt all executions until the matter is settled.

A state House committee this week approved a measure that would allow an inmate to appeal his death sentence if he believes racial bias was involved.

That committee also recommended studying how to ensure against defendants of color having all-white juries in capital cases, and determining the true state of a defendant�s mental capacity.